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The UK Court of Appeal modified a lower court ruling that had allowed the defendants in an upcoming terrorism trial to remain anonymous and to hold the trial in secret on the grounds of national security. We reported on that lower court decision last week. The court of appeal has now held that the two measures combined - anonymity and secrecy - were too much and that it was “difficult to conceive of a situation where both departures from open justice will be justified.” It held that the defendants should be named – and they were (Erol Incidal and Mounir Rarmoul-Bouhadjar) – and that some of the evidence but not all could be taken in secret. At the risk of setting precedent that could be interpreted as a broad authorization for secrecy in criminal cases, Lord Justice Gross stressed that the case itself “is exceptional.”

The court also held that a small number of journalists from the organizations that had brought the appeal would be allowed to attend all but the most sensitive evidentiary parts of the trial. Interestingly, however, these reporters would not be allowed to take their notes out of the courtroom or to do any reporting on the case until an existing reporting ban on the case is lifted.

Part of the problem with the case is that the proof in support of the government’s request for secrecy has itself been secret, so it is impossible for the public to evaluate the bona fides of the claim that secrecy is necessary. That situation remains. Nevertheless, the court was concerned and seemed to accept the government’s position that if it did not have some secrecy it would have to dismiss the case. We should follow the trial to see how the modified order is implemented, since, despite the court’s concern about the uniqueness of this case, whatever occurs will be novel and precedential, at least for serious terrorism cases.